[EL] Twitter EO

[James Bopp Jr]

Good points. My thoughts about each:

 First, I do not understand how one can believe that the First Amendment protects Twitter's right to spend unlimited amounts on campaign advocacy (to be clear, just like anyone else), but does not have a constitutional right to place factchecks (indeed, mere alternative sources) next to politicians tweets.  
 
I think Twitter has a First Amendment right to do both: send money endorsing candidates just like everyone else, and fact check politicians all day long.  My point is about 230.  Once Twitter assumes an editorial role re posts on Twitter, like fact checking them, they are assuming the role of publisher of the content and are responsible in defamation if appropriate.  They should not be given a special legal protection, when acting as a publisher, which 230 does.  230 was based on a business model for social media that they have abandon under pressure from the left and special legal protection is no longer justified.
Second, if you believe that Twitter must be held responsible for the content posted by its users (i.e., make them more like the NY Times), this will inevitably lead to much more censorship -- as they will need to adopt greater automation and preemptive takedowns of content that runs the risk of exposing them to liability.  Doing so, by the way, will have a massively disproportionate impact today on conservative voices (for reasons I can explain later if interested) .
 
I agree.  But this in not my choice but theirs and it has consequences.  If you are responsible for the content, then you are a publisher.  I wish that Twitter, etc., had not succumbed to pressure from the left to become a publisher and censor content.  I thought that the original business model of a bulletin board was a wonderful, liberating, wildly successful free market of ideas accessible to everyone.  Money was no longer a requirement to communicate but creativity and appealing ideas gained wide audiences. It is a tragedy that Twitter has chosen to destroy it.
Third, the EO (and CDA 230 for that matter) do not simply apply to the largest corporations.  If we remove this immunity it will chill the development of all kinds of speech marketplaces, big and small, because only the big ones will have any hope of hiring the large teams necessary to do content moderation at scale.
 
True, any change would apply to platforms large and small, but I think that one could amend 230 to apply to platforms that serve as bulletin board but not to those who assume the responsibility of a publisher that Twitter has. I hope that is how this works out.
Fourth, yes, there is liberal hypocrisy here but I would put it this way -- the liberal (left) argument against CDA 230 immunity is that it should be taken away so the overly powerful internet companies will be MORE responsible for injurious content on the platforms (i.e., encourage censorship).  I suspect the recent EO was not what they were contemplating so I suspect  the Warren/Sanders critique of CDA 230 will wane as a result.
 
Finally, CDA 230 does not require platforms to be uncurated open speech marketplaces.  All of their community standards (nudity, hate speech, bullying, incitement, self-harm, disinformation etc.) would be unconstitutional under the First Amendment if legislated by a government.   CDA 230 is intended to shield them from liability even (and especially) when they go beyond the bounds of what a government could do. 

The premise of 230 is that Twitter, et al, is not responsible for content, but now they are assuming that role so they should be as responsible as any publisher is. Of course, publishers can have "community standards" that they enforce and that is perfectly legal.  They are a private business and can have rules on the content of posts if they chose. They can require users to agree to their conditions for posting that goes beyond what the government could require under the First Amendment, but again, this may place them in the position of a publisher. 
Much more to say here, but my basic point was that the speech rights of corporations include the speech entailed in a factcheck.

Agree enthusiastically, but they are then the publisher of the site with whatever legal consequence follow.
Jim Bopp

In a message dated 5/28/2020 4:02:30 PM US Eastern Standard Time, npersily at law.stanford.edu writes:

First, I do not understand how one can believe that the First Amendment protects Twitter's right to spend unlimited amounts on campaign advocacy (to be clear, just like anyone else), but does not have a constitutional right to place factchecks (indeed, mere alternative sources) next to politicians tweets.    Second, if you believe that Twitter must be held responsible for the content posted by its users (i.e., make them more like the NY Times), this will inevitably lead to much more censorship -- as they will need to adopt greater automation and preemptive takedowns of content that runs the risk of exposing them to liability.  Doing so, by the way, will have a massively disproportionate impact today on conservative voices (for reasons I can explain later if interested) .  Third, the EO (and CDA 230 for that matter) do not simply apply to the largest corporations.  If we remove this immunity it will chill the development of all kinds of speech marketplaces, big and small, because only the big ones will have any hope of hiring the large teams necessary to do content moderation at scale.  Fourth, yes, there is liberal hypocrisy here but I would put it this way -- the liberal (left) argument against CDA 230 immunity is that it should be taken away so the overly powerful internet companies will be MORE responsible for injurious content on the platforms (i.e., encourage censorship).  I suspect the recent EO was not what they were contemplating so I suspect  the Warren/Sanders critique of CDA 230 will wane as a result.  Finally, CDA 230 does not require platforms to be uncurated open speech marketplaces.  All of their community standards (nudity, hate speech, bullying, incitement, self-harm, disinformation etc.) would be unconstitutional under the First Amendment if legislated by a government.   CDA 230 is intended to shield them from liability even (and especially) when they go beyond the bounds of what a government could do.  
Much more to say here, but my basic point was that the speech rights of corporations include the speech entailed in a factcheck.

Nate
----------------

Nate Persily

James B. McClatchy Professor of Law
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305-8610
(917) 570-3223
npersily at stanford.edu

www.persily.com

On Thu, May 28, 2020 at 11:30 AM James Bopp Jr <jboppjr at aol.com> wrote:
I think Nate's confusion arises from not understanding either Citizens United or the position of those that support it.

I litigated Citizens United because I believe that corporations and labor unions have the same First Amendment right to free speech as individuals and that their corporate form is not a constitutionally supportable justification to deny them those protections.  The Supreme Court agreed, which restored to corporations the same free speech rights as individuals have, including the right to independently endorse candidates.
However, no person, and now this includes corporations, have a First Amendment right to defame people, with the condition that, if the person is a public figure, the Plaintiff also must prove malice.  Of course, a person is subject to a defamation case if the person "publishes" the defamatory statement.
The import of 230 is to make social media platforms immune from defamation liability, since the original business model was that the platform took no responsibility for the content of the posts and thus were not the "publisher" of the post.

Unfortunately, these enormous corporation have now succumbed to liberal demands to assume responsibility for content in numerous ways which is leading to censorship principally directed at conservatives. Thus, the original justification for 230 no longer exists, that they were not publishers, so it should be repealed.
I am sure that Nate thought that there must be some irony here that Citizens-United-loving would want corporations to be free to defame people without liability.  That is just not so.  The New York Times is a corporation and it is not free to do this, nor should Facebook.
The real irony is that the left expresses unrelenting hatred of corporations and Citizens United while at the same time demanding that the largest corporations in the world with the most impact of public communication should engage in censorship of those they don't like and should get special legal protection in order to do it.

This position is irrational, in my opinion.  Jim
In a message dated 5/28/2020 1:55:48 PM US Eastern Standard Time, npersily at law.stanford.edu writes:
Apologies for being obtuse:   My point about Citizens United was that if you believe that corporations have an unfettered constitutional right to spend unlimited amounts on campaign advertising, I would think that right would also extend to publicizing factchecks about politicians, as well, without running the risk of legal sanction.   

----------------

Nate Persily

James B. McClatchy Professor of Law
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305-8610
(917) 570-3223
npersily at stanford.edu

www.persily.com

On Thu, May 28, 2020 at 6:14 AM Sean Parnell <sean at impactpolicymanagement.com> wrote:

Not entirely sure why the views of defenders of Citizens United are sought, but here goes (with the acknowledgement that, not possessing a law degree, my views should probably not be mistaken as quality legal analysis): it’s stupid. The one redeeming quality I find in the EO is that it is not nearly so badly/incoherently written as the EO from a few years back “repealing” the so-called Johnson Amendment, so props for that.

 

Sean Parnell

 

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Nate Persily
Sent: Thursday, May 28, 2020 12:38 AM
To: Rick Hasen <rhasen at law.uci.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: [EL] Twitter EO

 

Attached is the draft of the Executive Order regarding removal of CDA 230 liability for Twitter and other internet platforms as well as encouragement of investigations of the Silicon Valley platforms.  Gotta say, this is truly breathtaking.   Eager to hear reactions from defenders of Citizens United on this.   

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